Paid sick leave is not required under federal law, but some states, counties, and municipalities have policies requiring a certain amount of paid sick leave.
FMLA litigation pitfalls are too numerous to mention. You need an experienced attorney to handle FMLA claims, as there are many pitfalls for both the employee and employer in addressing these types of claims. FMLA claims usually end up being litigated in federal court and can often be decided on facts that you would not think important in your initial consideration of events. The statute is very effective concerning issues of termination or demotion in response to FMLA leave If you think you have a Family Medical Leave issue contact an experienced attorney immediately.
Current Law Under current law, in order to be eligible for CFMLA leave an employee must, at the time the leave begins, have: (1) worked for the employer for a total of twelve or more months; and (2) worked for at least 1,000 hours during the twelve months preceding the leave. New Law Beginning on January 1, 2022, workers in Connecticut will get up to 12 paid weeks off on the birth, adoption or fostering of a new child, to care for a family member or loved one with a serious health condition, to deal with their own illness, to serve as an organ or bone marrow donor or as the result of an emergency related to active military duty or a call to active military duty of a spouse, child or parent of the employee. The law also provides an additional two weeks for those incapacitated as a result of a complicated pregnancy. The new law which allows employees to obtain paid benefits starting January 1, 2022, makes employees eligible if they have worked for their employer for at least three months immediately preceding their request for leave with no minimum requirement for hours worked. To fund the benefit, beginning January 1, 2021, Connecticut workers will pay an additional tax of 0.5% on their wages. Benefits will cover up to 95 percent of wages on a sliding scale, capped at $900 a week. This makes Connecticut’s paid family leave the most generous paid family leave law in the U.S. Also, Connecticut’s definition of who qualifies as a family member or loved one is very broad. The law allows paid time off to care for a family member or person “whose close relationship is the equivalent of a family member.” While the current law mandates that all employers with 75 or more employees are covered by CFMLA, the new law that employees will be able to benefit from on January 1, 2022, reduces the employee threshold from 75 to one, covering almost all private sector employers in the state.
Over the past two decades, we have developed and refined a "soup-to-nuts" employee handbook and package of basic hire-to-fire forms and policies. Implementation of these forms and policies will greatly improve a company's legal protection in employment screening, hiring, training, terminations, and other related issues. We now offer our 2019 revised materials, containing critical additions for compliance with important legal changes this year. Not the least of these are the modifications that have arisen from the #Metoo movement's push for greater protections against all forms of workplace harassment. Our model forms and policies include: a) Employment applications (including releases that acknowledge an employer's use of pre-employment tests, notwithstanding the Americans with Disabilities Act and California's constitutional privacy protections); b) Form job description (again, setting the foundation for use of tests at the pre-employment stage); c) Pre-employment procedures policy (properly positioning the above tests as aimed at job-related qualities rather than physical or mental disabilities); d) Employment agreement (including confidentiality/non-disclosure of company trade secrets and mandatory mediation and/or arbitration in the event of a dispute); and e) Termination policy, checklist and standard release (to be applied with troublesome employees for greater protection against later, frivolous suits). Our comprehensive model employee handbook includes: a) Conditions of Company Employment b) Discrimination and Harassment, Prevention and Handling c) Employee Compensation d) Employee Benefits e) Employee Job Performance; Mutual Termination Rights f) Employee Privacy Expectations, Employer Access to Employee-Maintained Databases g) Unpaid Time Off h) Job-Related Injury or Illness i) Workplace Health and Safety j) Drug and Alcohol Policy; Drug Testing ORDER NOW, as prices go up on March 1, 2019. For more details and to order, contact client services director Loretta Gardea at 626.583.6600 or email her at [email protected]
The Benefits and Who Qualifies for Them The Family and Medical Leave Act, or *FMLA,* is a powerful bit of federal legislation that may help you navigate your or your family member*s medical problem. It allows you to take up to 12 weeks of medical leave from work for you or your family member*s *serious health condition.* But what is a *serious health condition?* It sounds like you have to have something pretty serious, right? Not necessarily. A *serious health condition* can mean many things. It can be an illness, injury or condition that requires an overnight stay in a hospital or other medical facility. It can be something that requires recurring doctor*s appointments. Or it can be something that requires continuing treatment, whether it be medication, physical therapy or some other procedure. The point is: *serious health condition* covers a broad range of medical issues, and if you think you might qualify, it*s worth looking into * just go to your employer*s Human Resources Department and see what they say. If they tell you that you don*t qualify, it may be worth it to contact a doctor or lawyer to get a second opinion. But of course, there are other issues that you need to be aware of when determining whether you qualify for FMLA leave: how big your employer is and how long you have worked there. To qualify for leave under the FMLA, your employer must employ at least 50 employees within a 75 mile radius of the location where you work. If you*re unsure about this, here*s a good rule of thumb: if you tell someone where you work, and they don*t ask you what that is, there*s a decent chance your employer meets this threshold. You must have worked for your employer for at least one year and must have worked 1,250 hours in the 12-month period leading up to your request for leave. No tips for you here, I became a lawyer because I don*t like math. So let*s say that you*re pretty sure that you have a *serious health condition* or you*re taking care of a family member who has one, your employer is big enough, and you*ve worked for them long enough, now what? Now you go to your boss or your Human Resources Department and tell them you need the paperwork to apply for FMLA leave. They have to give it to you or at least point you in the right direction. The paperwork isn*t too lengthy and your doctor fills out the tricky stuff, so don*t worry about that. If you*re approved, you have up to 12 months of leave to take within the next 12 weeks. You can take all of it at once, 12 weeks straight through. You can just take 3 or 4 or however many months you need if you don*t need the full 12. You can even take a few hours here, a few hours there, a day tomorrow and a day next week; whatever you need * this is called intermittent leave. The downside is that your employer is not required to pay you for the time you take off, but at least you can take the time off without being fired. Keep Your Employer Honest The FMLA not only provides you the right to take leave, it provides you protections to facilitate that right. It is illegal for an employer to fire you for taking FMLA leave * this is called retaliation. It is also illegal for your employer to try to keep you from taking your leave * this is called interference. If you think this has happened, is happening, or is about to happen, contact a lawyer. After all, you shouldn*t be punished for trying to take care of yourself or a loved one.
What is a *Key Employee?* *Key employees* are eligible to take FMLA with continued health insurance coverage. However, the company has the right to deny reinstatement if it determines that *restoration of the employee to employment will cause substantial and grievous economic injury to the operations of the employer.* A *key employee* is a salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee*s worksite. To determine the top ten percent of earners, the company must take into account all forms of payment including *wages, premium pay, incentive pay, and non-discretionary and discretionary bonuses.* This calculation must be made as of the date the key employee gives notice of leave. Notice Requirements for *Key Employees* An employer who believes that reinstatement may be denied to a key employee must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she qualifies as a key employee. The employer must then give a second written notice as soon as it determines that the substantial and grievous economic injury test will be met and that it intends to deny restoration. Upon learning that an employer believes that an employee is a *Key Employee,* the employee must be given a reasonable amount of time to return, knowing he or she may no longer have a position upon the end of his or her leave. Even if a key employee doesn*t return to work in response to the employer*s notice that reinstatement may be denied, the employee may still request reinstatement at the expiration of his or her leave. Upon a *key employee*s* request for reinstatement, the employer must perform a third evaluation at that time to reevaluate whether reinstating the employee would cause significant economic harm.
Employers are sometimes uncertain how to properly respond to an employee*s request for Paid Family Leave because the name is somewhat misleading. Some unpaid *leaves of absence* (for example for medical conditions or family emergencies) are legally *protected,* meaning the employer must accept the eligible employee back to the same (or comparable) job position at the same (or comparable) pay rate. See, e.g., California *New Parent Leave Act* Impacts Small Business (December, 2017). However, California*s Paid Family Leave (PFL) is not an additional, stand-alone protected leave of absence. Rather, it is a temporary disability program administered under the state*s Employment Development Department (EDD) to provide partial wage replacement benefits when a person must be off work in certain circumstances. To qualify for PFL benefits of up to six weeks partial pay in a 12-month period, the employee must need time off from work to care for a seriously ill family member or to bond with a new child; be covered by State Disability Insurance; have earned at least $300 in the past five to 18 months; and submit the PFL claim to EDD within a specified time period. If an employee applies for PFL benefits while concurrently on authorized and permitted leave under California*s Pregnancy Disability Leave (PDL), California*s New Parent Leave Act, the Federal Family and Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA), then the employer must provide job protection as legally required under any such leave law(s). If, however, the employee qualifies to receive PFL benefits (i.e., to care for a seriously ill family member or for baby-bonding) but is not covered by any protected leave of absence (e.g., if the company has less than five employees and is therefore not required to provide any of the above-mentioned protected leaves), then the employer does not have to grant the requested time off or guarantee job reinstatement afterwards. In those circumstances, the company should base its decision to grant the requested time off on its internal policies, previous practices and, perhaps the most basic consideration, common sense. All California employers regardless of size must comply with all PFL requirements, including filing applicable PFL forms with the EDD. When the PFL begins, employers must proceed with any payroll deductions according to the EDD*s rates and provide the employee with a Notice as to Change in Relationship. Employers must distribute a mandatory PFL information brochure (DE 2511) to all new hires and any worker commencing such time off work. The employer must also post this information (DE 1857A) in the workplace where the employees can read it easily. To download the most current notices and posters, visit the EDD*s website. See, Changes to California Paid Family Pamphlets (July, 2015). As state and federal leave and wage benefit regulations are complex and often overlapping, employers should have well-written, standardly-implemented policies and consult with an attorney as needed when faced with an employee requesting PFL. See also: * California Family Rights Act New Regulations (July, 2015) * Requiring Use of Paid Vacations for Unpaid Leaves (August, 2012) For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kob Cindy Bamforth August 3, 2018